International Airspace and Civil/Military Cooperation

Low water mark baseline (UNCLOS Articles 7, 9, 10)

Baselines for archipelagic waters (Article 47- maximum baseline length 100NM, or 125NM for 3%)
National Airspace (Sovereign): International Airspace: ICAO Convention
ICAO Convention Articles 1, 2, 28, 38 Articles 12, and Annex 2 and Doc 7030
12NM 12NM
4
Internal Waters Archipelagic Territorial Contiguous High Seas
2 3
(UNCLOS Article 8) Waters Seas Zone (Articles 47
(Articles 47-54) (Articles 3, 4) (Article 33) and 87)
200NM
1
Exclusive Economic Zone
Landlocked nations Natural islands/reefs – no effect on aircraft
(Articles 69 and 125) (Articles 6, 11, 60, 121) (Articles 57, 58)
1
Landlocked nations have the right of passage by air and surface to the sea (Article 125)
2
Within Archipelagic Waters, aircraft have unobstructed passage rights using air routes (Article 53) Continental Shelf
3
Only for enforcement of customs, fiscal, immigration and sanitary laws within Territory/Territorial Seas
4
UNCLOS III (1994) High Seas definition (Article 86), UNCLOS I (1962) High Seas = outside Territorial Seas
(Article 6, 11, 121)

Figure 1: Maritime and Airspace Volumes as Defined by UNCLOS (white/red = UNCLOS, purple = CC)

Key aspects about the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention
on International Civil Aviation (‘Chicago Convention’ or ‘CC’) are as follows.

 Although UNCLOS is titled as a ‘Law of the Sea’, its provisions also affect airspace and the
operation of aircraft!

 In particular, UNCLOS defines volumes of airspace that are sovereign and international
(where States may make laws and where States may not make universal laws* respectively,
Figure 1). It should be noted that the terms ‘national airspace’ and ‘international airspace’
are descriptive in nature, but do not appear in UNCLOS or the CC.
*Note: notwithstanding this, States may enact laws for their own citizens and aircraft
registered in those States for operations within international airspace.

 The volumes of airspace are dependent on the definition of ‘baselines’ in UNCLOS, which
are generally based on the maritime shoreline, whether the shore is continental in nature or
the outermost part of a chain of islands (an archipelago). However, not all island groups are
archipelagos, as the islands must be no more than 100NM apart to meet the definition of
being an archipelago (except for 3%, 125NM apart).

 Archipelagic Waters and the airspace above them are sovereign and part of the territory of
the State concerned, which is relevant for Article 28 of the CC (provision of air navigation
services). However, the sovereignty of archipelagic airspace is not the same as other
territorial airspace, as aircraft have the right of ‘continuous and expeditious’ passage, so
cannot be denied transit through this area (UNCLOS Article 53).

 Exclusive Economic Zones (EEZs) only have material effect on maritime resources,
including the sea bed, and do not have any legal consequences for aviation (UNCLOS
Articles 57 and 58).

Originally developed as ATM/SG/6-Flimsy 6

 The CC and Annex 2 is not considered to use the same definition of ‘High Seas’ as the 1994
iteration of UNCLOS, deferring to the earlier version (1962)*. Article 2 of the CC is clear
that ‘National Airspace’ only composes the land and territorial waters; therefore, the non-
sovereign portion of airspace is beyond this, as far as aviation is concerned (i.e.: beyond
12NM). In addition, not all States have ratified the latest version of the UNCLOS.
Article 2: For the purposes of this Convention the territory of a State shall be deemed to be
the land areas and territorial waters thereto under the sovereignty, suzerainty, protection or
mandate of such State.

 While the CC and its Annexes, including Annex 2, are not applicable to State aircraft
(military, police or customs) in general, the Convention does place requirements upon States
regarding the interaction between military and civil aircraft. For example, State aircraft may
not overfly the territory of another State without permission, and regulations must be enacted
to require State aircraft to have ‘due regard’ for the safety of navigation of civil aircraft
(Article 3 of the Convention).

 In addition, Article 3 bis of the CC requires States to ensure that military aircraft do not
endanger civil aircraft, but these are only for two specific situations – use of weapons and
interception.

 There are no requirements for State aircraft to comply with civil requirements in
international airspace (thus a State aircraft operating on a flight plan in such airspace is
complying with civil requirements voluntarily, including an ATC clearance to enter
controlled airspace, and may not legally be denied an ATC clearance to transit).

 It is possible that States may determine that, in the interests of safe interaction between
military and civil aircraft, Article 3 bis of the CC needed to be amended to include reference
to the specific requirement for an ATC clearance into controlled airspace (to ensure entry at
a safe level, position and time, not for denial of transit), but ICAO had no current plans to
amend the Convention in this regard, *or to further clarify what ‘international airspace’ is.
………………………………………….

Originally developed as ATM/SG/6-Flimsy 6